AAR v PFN
[2014] NZHC 1295
•10 June 2014
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV-2013-443-301 [2014] NZHC 1295
UNDER The Family Protection Act 1955 IN THE MATTER
of an appeal from Interlocutory Orders made in the Family Court in the matter of FAM-2013-043-0115
AND
IN THE MATTER
of the Estate of JTPR (Deceased)
BETWEEN
AAR Appellant
AND
PFN Respondent
Hearing: 17 February 2014 Appearances:
SC Herbert for Appellant
SW Hughes QC for Respondent, in personal capacitySE Gifford for Respondent, as administrator of the deceased's estate
Judgment:
10 June 2014
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 10 June 2014 at 10:00 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
AAR v PFN [2014] NZHC 1295 [10 June 2014]
Table of Contents Paragraph
Number
Introduction [1] Jurisdiction to hear appeal [3] Summary of grounds of appeal and result [5] Reasons [7] Background [7] The judicial conference [15] The relevant rules [19]
The grounds of appeal [24]
Unjustified use of judicial conference to determine discovery and interrogatories applications
[25]
The merits of the applications [26]
Discussion [27]
The Judge’s failure to determine the application for
leave to administer interrogatories
Use of judicial conference to determine discovery and interrogatories applications
Challenge to merits of decision to refuse discovery orders
[27] [29]
[44]
Result and costs [51]
Introduction
[1] This judgment deals with the relationship between the rules about the conduct of judicial conferences under the Family Courts Rules 2002 ("the Rules"),1 at which interlocutory orders may be made, and the rules providing specifically for the making of interlocutory orders, such as for discovery of documents after proceedings have been commenced.2
[2] The issues arise in the context of an appeal against directions given by Judge Twaddle at a judicial conference in the New Plymouth Family Court conducted in respect of applications by the appellant for further provision from her deceased father’s estate under the Law Reform (Testamentary Promises) Act 1949 ("LRTPA") and the Family Protection Act 1955 ("FPA") ("the substantive applications"). The directions made by the Judge on 16 September 2013 included declining an application by the appellant for further discovery on the grounds that the respondent, both in her personal capacity and as administrator of the estate, had made reasonable efforts to provide discovery and that the expense of complying with the appellant’s request would be out of all proportion to the value of the estate.
Jurisdiction to hear appeal
[3] The right of appeal from a decision of a Family Court in proceedings under the FPA is provided by s 15 of that Act. The right is confined, however, to substantive decisions and must not extend to interlocutory orders or a decision to refuse an interlocutory order.3 Section 5A of the LRTPA is in terms identical to s 15
FPA and therefore it does not confer a right of appeal on interlocutory matters either.
It may be thought that Parliament intended that the High Court should not become clogged with appeals from interlocutory decisions of the Family Court. But the provisions of the District Courts Act 1947 apply to Family Courts and Family Court judges.4 Section 72 of that Act provides a right of appeal against every decision
made by a District Court, other than a decision of a kind in respect of which an
1 Family Courts Rules 2002, rr 174-177.
2 Rules 141-151, 215-238.
3 Crick v McIlraith HC Dunedin CIV-2004-412-37, 1 June 2004 at [3]; E v E (2005) 24 FRNZ
325.
4 Family Courts Act 1980, s 16(1).
enactment other than the District Courts Act expressly confers a right of appeal or provides expressly that there is no right of appeal. Neither of the exceptions applies in proceedings under the FPA or the LRTPA.
[4] Accordingly, despite the misgivings I expressed to counsel at the hearing, I am satisfied that Mr Herbert was correct to argue, and Ms Hughes QC was correct to concede, that by a backdoor method this Court has the jurisdiction to hear an appeal from an interlocutory direction made by a Family Court judge at a judicial conference.
Summary of grounds of appeal and result
[5] The appellant submitted that the Judge was not entitled, at a judicial conference, to rule on discovery and interrogatories applications which had been filed in accordance with the specific provisions of Part 4 of the Rules dealing with interlocutory matters. It was submitted that the powers to make such orders in a judicial conference were reserved for circumstances in which the Judge decided to act on his or her own motion. Further, it was argued that the obligation of the administrator of an estate to disclose information to beneficiaries is of fundamental importance and that the Court should not have declined to make the orders sought.
[6] I dismiss the appeal, for the reasons given below. In summary, I have decided that the Judge was entitled to use the judicial conference to consider and determine the interlocutory applications and that, in light of the circumstances, he was entitled to come to the view that the applications should be dismissed.
REASONS Background
[7] JTPR (the deceased) and PFN (the respondent) married in 2009 after having lived together for three years. The deceased worked overseas as a vessel master engaged in the oil industry; he had bank accounts in Singapore and Costa Rica but his other assets were in New Zealand. He died intestate in September 2011, in Costa
Rica, aged 49 years. The respondent, who was granted letters of administration of the estate, claims priority to the assets of the deceased's estate pursuant to the Administration Act 1969, but acknowledges that the appellant may have an entitlement under that Act.
[8] The appellant, AAR, is the deceased’s 33-year-old daughter and his only child. She made applications in February 2013 for orders under the FPA for proper maintenance and support, and under the LRTPA for the transfer of a specific asset, namely certain land and buildings comprising a disused dairy factory or the shares in any company which may own the property. A separate proceeding was commenced by the appellant in the District Court for a declaration that a motor vehicle valued at approximately $15,000-$20,000 owned by the respondent in New Zealand at the time of his death was held in trust for the appellant's son, a minor.
[9] On 19 April 2013, the respondent's solicitor made a settlement offer and said he would refrain from filing any documents on behalf of the estate or the respondent pending the applicant's response to the offer. The offer was not accepted but it was not rejected outright. The respondent's solicitor sought an extension of time for the filing of a notice of defence and other documents. An order was made on 13 May
2013 requiring the respondent to file a notice of defence within 14 days of the rejection of the settlement offer or a request by the applicant that they be filed; a request that the documents be filed was made on 16 May 2013. On 24 June 2013 the respondent filed an affidavit as administrator setting out the assets and liabilities of the estate, and addressing issues about the disclosure of information to the appellant. Copies of relevant correspondence were attached.
[10] After payment of the estate's debts and funeral and administration expenses, the assets at 24 June 2013 were said to comprise $55,287.22 in a solicitor's trust account;5 an amount estimated at US$74,000 in a Costa Rican bank account; shares of unknown value in a Māori incorporation; and shares in the company which owned the dairy factory. The property was said to have a current value of $190,000 for
rating purposes but was subject to a mortgage and other liabilities of an unknown
5 The net proceeds (after deduction of the expenses incurred in realising the funds) of Bonus
Bonds and a small cash sum held in a New Zealand bank account; insurance policy proceeds of
$55,851.97; and US$31,761.16 in a Singapore bank account.
amount. The motor vehicle was recorded in the respondent's affidavit as an asset of the deceased at the time of his death.
[11] On 26 July 2013, the respondent served a "pro forma statement of defence" on the appellant, but it did not conform with the rules relating to notices of defence.
[12] On 13 August 2013, the appellant filed applications seeking to have the substantive applications heard in the absence of the respondent but the respondent filed a notice of defence on 20 August 2013 in which she asked the Court to arrange a mediation conference or a settlement conference. The Court then gave the parties notice of a judicial conference to be held on 16 September 2013.
[13] On 12 September 2013, under Part 4 of the Rules, the appellant applied for orders as to discovery and interrogatories against the respondent as administrator and in her personal capacity. She also filed an affidavit addressing the factual background to her claims and annexing a 171-page bundle of documents containing “more or less all correspondence between [her] solicitor and the [respondent's] solicitor for the period from 12 January 2012” to the date of the affidavit.
[14] The discovery orders sought were as follows:
23.I require the administrator to give full discovery of any and all documents which touch upon:
(a) the extent and content of the estate, and
(b) for the avoidance of doubt, including all assets owned by my father immediately before he died, which assets are thought to include but are not limited to
(c) photographs, collections, and memorabilia,
(d) bank records covering the period June 2011 to date,
(e) the contents of the deceased’s computers, phones, access
codes, email accounts, deposit boxes,
(f) the administrator’s dealings with estate assets, including but
not limited to
(g) the security and preservation of those assets, (h) a Ferrari car, and
(i) the whole of the administrator’s solicitor’s file.
24.I require the defendant beneficiary to give full discovery of any and all documents which touch upon:-
(a) the nature and duration of the marriage between the defendant beneficiary and my father, (“them”),
(b) correspondence between them
(c) her circumstances and the extent of my father’s moral duty
towards her,
(d) her declarations and statements (if any) as to the status of their marriage made to any third party or government agency since July 2009
(e) financial arrangements and transactions between them,
(f) the extent and details of her access to and use of my father’s
financial or other resources, if any.
The judicial conference
[15] At the conclusion of the judicial conference held on 16 September 2013, Judge A J Twaddle issued a directions minute in which he recorded that Mr Gifford, who was counsel for the respondent as administrator, submitted that the appellant had been given all information the respondent had been able to obtain regarding the estate assets, to the extent possible. Ms Hughes QC, as counsel for the respondent in her personal capacity, submitted that the respondent was aware of the relatively small size of the estate and had offered to transfer the motor vehicle, the shares in the Māori incorporation, and the dairy factory shares to the appellant. The offer was subject to the appellant withdrawing her objection to the respondent collecting in the
remaining assets of the estate,6 and holding the proceeds in a solicitor's trust account
pending the agreement of the parties or an order of the Court.
[16] Judge Twaddle found that after the respondent's offer to transfer assets to the appellant was taken into account, the amount left in the estate would be $150,000 to
$170,000 less estate costs. He agreed it is a small estate.
6 Principally the funds in the Costa Rica bank, realisation of which required a joint application by the appellant and the respondent.
[17] Judge Twaddle said his impression of the appellant’s application for discovery was that she was wanting the respondent to provide information to bolster her case and that many of the items sought to be discovered were “relatively minor”. Standing back and assessing “the relative importance of the matters sought to be discovered against the background of the small estate”, the Judge declined to order discovery. He said the respondent had “made reasonable efforts to provide discovery, and the expense of complying with the discovery sought would be out of all proportion to the value of the estate.”
[18] The Judge considered that the parties should make every effort to resolve the claims on the basis of the information before the Court and that a settlement conference would be an effective way of doing so. He declined the application for discovery and directed that a two-hour settlement conference be convened on the next available date.
The relevant rules
[19] The starting point for any consideration of the meaning and application of the Rules is r 3(2). It requires the Rules to be read in the light of their purpose which is to make it possible for proceedings in Family Courts to be dealt with as fairly, inexpensively, simply, and speedily as is consistent with justice; in such a way as to avoid unnecessary formality; and in harmony with the purpose and spirit of the
family law Act under which the proceedings arise.7
[20] The rules governing judicial conferences in Family Court proceedings are set out at rr 174 to 181. They begin with a statement that a Family Court judge may direct that a judicial conference be held to ensure that an application to the Court “is determined as fairly, inexpensively, simply and speedily as is consistent with justice”, a replica of r 3(2).8 This purpose is confirmed in r 175; under r 175(2) a judge is given a wide discretion "to make any orders and give any directions" that the judge considers are consistent with the purpose and spirit of the family law Act
under which the proceedings arise and are necessary to ensure that an application is
7 Rule 3(1).
8 Rule 174.
determined as fairly, inexpensively, simply, and speedily as is consistent with justice. This provision reflects the more general r 16 which permits a judge presiding over a court to “give any directions he or she thinks proper for regulating the court’s business”, so long as they are not inconsistent with the Rules or a family law Act.9
[21] Rule 175D(1) provides that at a judicial conference, the presiding judge may, "pending determination of an application, make any orders and directions that the Judge is empowered to make" by the family law Act under which the proceedings arise and by the Rules. Rule 175D(2) provides more specifically, but not exclusively, that the judge may do any number of things of a procedural nature and give any consequential directions he or she considers necessary.
[22] Rule 175D(2)(h) expressly permits the judge to make a direction which requires a party to make discovery, produce documents, or both. Orders for discovery and inspection of documents are specifically provided for in Part 3 of the Rules at rr 140-152. Similarly, a number of the other orders for which express provision is made in r 175D(2) are also expressly provided for in other rules. Such
orders include joinder or striking out of parties;10 directions as to service;11
amending time limits;12 and ordering the provision of further or better particulars.13
[23] Part 4 of the Rules governs the procedure by which interlocutory applications for orders such as those listed in r 175D(2) should be commenced and dealt with. 14
Among other things, these rules set out which interlocutory applications may be made without notice; who is to hear and determine them; what form they must be in; how evidence is to be provided; where they must be filed; how they are determined;
and how interlocutory orders may be enforced.
9 Rule 13(1).
10 Rule 133.
11 Rules 101-130.
12 Rule 132.
13 Rule 139.
14 Rules 215-238.
The grounds of appeal
[24] The appellant’s argument that the judge was wrong to refuse to order discovery comprises two principal grounds. It was submitted, first, that the Judge was not entitled to rule, at a judicial conference, on discovery and interrogatories applications which had been filed in accordance with the specific provisions of Part
4 dealing with interlocutory matters. Second, it was submitted that the obligation of the administrator of an estate to disclose information to beneficiaries is of fundamental importance and that the Court should not have declined to make the orders sought.
Unjustified use of judicial conference to determine discovery and interrogatories applications
[25] As to the first ground, Mr Herbert argued as follows:
(a) The wide powers conferred on a judge under r 175 to make any orders and give directions under the Rules at a judicial conference are limited by the need to confine orders to those consistent with the purpose and spirit of the family law Act under which the proceedings arise,15 in this case the FPA and the LRTPA.
(b)Any such orders must be consistent with the interests of justice and necessary for the fair determination of the proceedings. Discovery and interrogatories are the cornerstone tools of civil procedure by which the courts ensure fairness and justice.
(c) The rules applicable to directions conferences do not confer on the judge a jurisdiction to dispose of interlocutory applications made under Part 4. The rules in that Part exist expressly for that purpose. For this reason, r 175D is limited to authorising the Court to require discovery or to permit interrogatories in situations where it appears to the Court that, in order to achieve the purposes set out in r 175, it is
necessary for the Court to make such orders on its own motion.
15 Rule 175(2)(a).
(d)The rules in Part 4 prescribe the procedures for dealing with interlocutory matters, including by way of a hearing. Although the respondent had filed a notice of opposition in her personal capacity, she had not done so as administrator. No affidavits in opposition to the orders had been filed. Because the Court did not require that the procedure laid out in Part 4 should be followed with regard to the appellant’s applications for discovery and interrogatories, and did not declare the basis upon which it assumed jurisdiction to make such orders at the judicial conference, it may be inferred that the Court, erroneously, assumed that its jurisdiction to determine the issues arose under r 175D.
The merits of the applications
[26] On the second ground, Mr Herbert submitted:
(a) Having regard to the circumstances and the short duration of the marriage, and the fact that the deceased and the respondent appeared to be living apart at the time of death, the appellant had the right to insist on further evidence justifying the respondent’s claim that she was entitled to provision under the Administration Act as the deceased’s widow.
(b)The Judge’s apparent criticism that the application was made by the appellant to “bolster” her claim demonstrates that the decision was made on an erroneous ground. A party is entitled to discovery of relevant documents which go to prove that party’s claim or disprove a defence.
(c) The Judge was not justified in characterising many of the items sought in the discovery application as “minor”. Personal effects can be of considerable sentimental value; the appellant was entitled to seek information about dividends from shares in the Māori incorporation; subsequent information provided by the respondent’s solicitor
indicated that comments made by counsel that all relevant documents had been disclosed already were unjustified, at least in respect of the funds held in the Costa Rica bank.
(d) The Judge’s characterisation of the estate as “small” was not justified
in circumstances where it appeared to have a gross value of $414,700.
(e) The obligation of the administrator of an estate to disclose information to beneficiaries is of fundamental importance to determining the size of the estate and to assessing beneficiaries’ claims to it. The Judge should have enforced that obligation by making the orders sought.
(f) The Court was under pressure to deal with the judicial conference late on a busy day and the Judge did not say that he had read the interlocutory applications or the applicant’s extensive affidavit. The process appears to have been flawed.
(g) The parties should be required to revert to the position as it was on
16 September 2013 so that the appellant’s interlocutory applications can be dealt with in accordance with the procedure in Part 4 of the Rules.
Discussion
The Judge’s failure to determine the application for leave to administer
interrogatories
[27] I note that, at the time of the conference, there was an application by the appellant for leave to administer interrogatories against the respondent as administrator and in her personal capacity. Judge Twaddle did not refer to this application in his directions Minute. Mr Herbert did not make any point about that apparent oversight in arguing the appeal.
[28] The result of the Judge’s oversight, however, is that there is an unresolved interlocutory application currently before the Family Court. The Judge’s reasoning for dismissing the discovery application, and Mr Herbert’s arguments on appeal, are equally applicable to the interrogatories application so that unresolved issue should be dealt with in accordance with this judgment.
Use of judicial conference to determine discovery and interrogatories applications
[29] Bearing in mind the number of times the Rules refer to their purpose, it would be difficult to misunderstand the message. Proceedings in the Family Court under the FPA and the LRTPA are to be dealt with efficiently, inexpensively and without undue formality so long as the procedure and the outcomes are fair and consistent with justice. Family Court judges, counsel and parties should approach judicial conferences on that basis, with a view to cutting through technicalities and addressing the real issues which arise for determination. Having regard to the purposes of the Rules generally and specifically related to judicial conferences, and to the broad language used in conferring the Court’s discretion under r 175(2), it would be inconsistent for the Court to read down the wide discretion to make orders and directions under r 175D.
[30] The flexible nature of the procedural provisions for judicial conferences is supported by r 177 which provides that:
If the court hearing an application considers that the interests of justice require the variation or revocation of an order made, or a direction given, under rule 175, the court may vary or revoke (in whole or in part) the order or direction.
[31] As is provided in r 3(2), the Part 4 rules relating to interlocutory applications must be read in the light of their purpose.16 Although the Part 4 rules are prescriptive and should be followed wherever it is reasonably possible to do so, they are not to be read or applied pedantically.
[32] Furthermore, a failure to comply with the Rules must be treated as an irregularity17 and does not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order.18 Rule 17(2) provides that if the Rules have not been fully complied with at some stage of any proceedings, the Court has the power to set aside the proceedings or any step or order or to allow amendments and make any other appropriate orders (such as to costs or adjournment).19 Significantly, however, a consequential order under r 17(2)(a) may not be made on the application of a party unless the party has acted promptly and before taking any fresh step after becoming aware of the non-compliance.20
[33] It is clear, therefore, that the rules about interlocutory applications, like the other rules, are procedural tools which are to be applied flexibly and pragmatically to achieve just outcomes without undue formality.
[34] Mr Herbert argued that a broad interpretation of the power in r 175D(2) to make specific interlocutory orders at a judicial conference renders the Part 3 and Part 4 interlocutory provisions redundant. I consider, however, that the rules for judicial conferences and the specific rules for interlocutory applications can comfortably run alongside each other.
[35] The advantage of the specific provisions is that they require an applicant to articulate clearly what is sought and they require a respondent to be clear as to the grounds upon which any interlocutory order is opposed. The Rules provide the Court with a framework for identifying and addressing the real issues to be determined. For these reasons, the Part 3 rules about particular aspects of proceedings such as the form and service of documents, obtaining further information by way of interrogatories, discovery and request for particulars, and how evidence is to be provided to the Court, ought to be followed in most cases. The Part
4 provisions for dealing with interlocutory matters should also be followed in the
usual course of events.
17 Rule 17(1)(a).
18 Rule 17(1)(b).
19 Rule 17(2)(a) and (b).
[36] The Rules make it clear, however, that any formalities required by those provisions can be dispensed with in appropriate cases, to achieve the purpose of inexpensive expedition in the conduct and disposal of Family Court proceedings where doing so is consistent with the purpose and spirit of the particular family law Act involved, and with justice. In such cases, the power to make procedural orders at a directions conference may be exercised without requiring the Part 4 procedure to have been followed.
[37] Mr Herbert’s contrary argument, that the exercise of the specific powers in r 175D(2) should be confined to cases where formal applications for orders have not been made in accordance with Part 4 and the judge is moved to act on his or her own motion, would require reading that limitation into the broad wording of the Rules. To do so would be inconsistent with the purpose of the Rules.
[38] At the judicial conference on 16 September 2013, it would have been open to the Judge to direct the respondent to file such documents in opposition to the appellant’s applications as the Part 4 rules might require, to set a timetable, and to set the matter down for a hearing. But it was also open to the Judge to take the view that a less formal approach would enable justice to be done between the parties on the interlocutory matters at issue.
[39] I do not infer from Mr Herbert’s reference to the time, duration and circumstances of the conference that the Judge decided the issue without considering all relevant material. There is nothing in the directions Minute to indicate that the Judge was unaware of relevant information in the material then before the Court. On the contrary, it is clear to me from the Judge’s discussion of the submissions of counsel, and his necessarily brief summary of the net value of the estate, that he grasped the relevant facts and circumstances.
[40] In particular, I agree with the Judge’s analysis that the estate was “small”, once he had accepted that the interest in the dairy factory was to be transferred to the appellant and the motor vehicle to her son. The Judge did not refer to the shares in the Māori incorporation, which Mr Herbert estimated to be worth $15,000, but that
was a neutral factor because the respondent had indicated she would transfer that interest to the appellant.
[41] The Judge was right in my assessment to value that part of the estate which remains in dispute at between $150,000 and $170,000, less estate costs which the evidence indicated to have been in excess of $32,000 at the end of June 2013. Although Mr Herbert was critical of the legal fees incurred by the estate, he informed me from the Bar that he had spent over 200 hours in advising and representing the appellant in these matters.
[42] Bearing in mind the respondent’s entitlement under s 77 of the Administration Act 1969 to payment of the prescribed amount of $155,000, if the residue of the deceased’s estate can meet that charge, the Judge was entitled to regard the amount remaining in dispute in the proceedings as very modest.
[43] Against that background, I consider not only that the Judge was entitled to dispense with the formalities of the interlocutory application rules and to address the application for discovery at the judicial conference, but that he was right to do so.
Challenge to merits of decision to refuse discovery orders
[44] Counsel were agreed that the Court’s power to grant or refuse orders for further discovery is discretionary and that an appeal from the exercise of such a discretion is to be considered in accordance with the principles in Kacem v Bashir.21
There, it was held that the decision appealed from may be set aside only if there had been an error of law or principle, irrelevant considerations had been taken into account, relevant considerations had not been taken into account, or the decision was plainly wrong.
[45] I have considered Mr Herbert’s comprehensive submissions on the duties of the administrator or executor of an estate to obtain relevant information as to the assets and liabilities comprising the estate and to share that information with
beneficiaries. The applicable principles are relevant to the exercise of the Family
21 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
Court’s discretion. It is worth noting in the present context that a beneficiary does
not have an absolute right to estate or trust information.22
[46] I have also considered Mr Herbert’s criticisms in this case of the extent to which Mr Gifford, in his role as solicitor to the estate and the administrator, had met those disclosure obligations. I can find nothing in the material provided to the District Court Judge, and to this Court on appeal, to justify any criticism of Mr Gifford’s conduct. The administration of the estate is not without its complications, given the existence of bank accounts in Singapore and Costa Rica and the need for the administrator to comply with the requirements of the foreign banks in order to obtain information about, and to repatriate, the funds held in those accounts. It is clear to me that Mr Gifford has been diligent in dealing with those issues and that, to the extent that the appellant’s cooperation is required with regard to the Costa Rica bank account, he has done his best to facilitate that cooperation.
[47] Having regard to the nature of the assets, the size of the estate, and the respondent’s agreement that the dairy factory asset, the shares in the Māori incorporation, and the motor vehicle shall be transferred in favour of the appellant, I am satisfied that the information so far provided to the appellant is sufficient to enable her, with the benefit of legal advice, to accept the respondent’s proposals, negotiate further, or pursue her claims.
[48] I have indicated already that I agree with the Judge’s assessment of the size of the estate, or at least so much of it as remains in dispute. I am not persuaded that there is any merit in Mr Herbert’s submission that the Judge erred in commenting that the appellant was wanting the respondent to provide information to bolster the appellant’s case and that many of the items sought to be discovered were relatively minor. I understand the Judge, by making those references, to have meant that the appellant was on something of a “fishing expedition”. The appellant’s request for full discovery of documents touching upon the marriage between the respondent and
the deceased; the request for the whole of the administrator’s solicitor’s file; and
22 Schmidt v Rosewood Trust Limited [2003] 3 All ER 76 (PC); applied in Foreman v Kingstone
[2004] 1 NZLR 841 (HC).
other detailed information concerning the assets and the administration of the estate,
justified the Judge’s conclusion.
[49] Bearing in mind the need for the Judge to make a decision which fulfilled the purpose of the Rules as identified in r 3(2), he was entitled to conclude that the respondent, in both capacities, had made reasonable efforts to provide discovery and that the expense of further discovery would be out of all proportion to the value of the estate. In those circumstances, it was open to him to conclude that further discovery was not necessary to produce a just outcome to the proceedings. I am more than satisfied that there was no error in the Judge’s approach to the issue and that his decision was one which he was entitled to reach.
[50] On the same basis, the Judge would have been entitled to dismiss the application for leave to administer interrogatories. Technically, the appellant’s application for such leave remains unresolved. The Family Court Judge may wish to issue a further Minute dealing with it in the light of this judgment.
Result and costs
[51] The appeal is dismissed.
[52] The respondent is entitled to costs as administrator and in her personal capacity. Given the size of the estate, an order that her personal costs shall be paid out of the estate may result in her effectively meeting her costs herself, but I express no concluded view on that issue. Ms Hughes QC and Mr Gifford shall have until
30 June 2014 to file memoranda as to costs. The appellant shall have until
21 July 2014 to file a memorandum in reply. Costs will then be dealt with on the papers unless the Court directs otherwise.
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Toogood J
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